United States v. Stewart, 2010 U.S. App. LEXIS 24827

Stewart, Fomby, Moore, and Scafe planned an armed bank robbery in Euclid, Ohio; four conspirators traveled in a stolen van to Charter One Bank; Stewart fired a shotgun through a glass cubicle, injuring an assistant manager, Washington.
The four coconspirators fled in the stolen van; witnesses testified Stewart was the shooter; the group divided the stolen funds and disposed of weapons and masks.
Stewart was indicted in 2007 on conspiracy, armed bank robbery, and two §924(c) counts; a superseding indictment added the coconspirators; trial initially scheduled for July 2007.
The district court granted a continuance for defense preparation over Stewart’s objections; Stewart later was retried and convicted on all remaining counts in June 2008.
Stewart was sentenced to 60 years total on the armed-robbery and §924(c) counts, plus three years of supervised release and $16,833 restitution; the court found, for sentencing, that Stewart attempted to murder Washington and that Washington sustained life-threatening and permanent injuries.
On appeal, Stewart challenges (i) speedy-trial rights, (ii) sufficiency of evidence, and (iii) several aspects of sentencing (procedural and substantive).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Speedy-trial violation?	Stewart alleges the July 2007 continuance violated the Speedy Trial Act.	Stewart argues the end-of-justice continuance should be invalid; consent was not given.	No reversible error; court properly exercised discretion; no prejudice shown.
Sufficiency of evidence	Coconspirator testimony alone could not prove Stewart’s participation.	Uncorroborated accomplice testimony can support conviction; circumstantial evidence corroborates.	Sufficient evidence supported conviction.
Judicial factfinding in sentencing	District court’s findings about intent to kill violated Apprendi and due process.	Preponderance-of-evidence findings are permissible if within statutory maximum; no extra offense found.	Judicial factfinding within permissible range; within statutory maximum.
Double counting and disparities	Injuries counted under multiple guidelines; disparities with coconspirators argued as unfair.	Injury enhancement was offset by departure/variance structure; §924(c) interaction discussed but not decisive here.	No improper double counting; variance justified; disparities explained within §3553(a).
Sentencing methodology	Appeal challenges whether the court properly explained its methodology and used §3553(a) factors.	Court followed Booker framework, used departure then variance, and explained rationale.	Sentence procedurally and substantively reasonable; affirmed.

United States v. Brown, 498 F.3d 523 (6th Cir. 2007) (waiver of speedy-trial claim by not raising pre-trial)
United States v. Strickland, 342 Fed.Appx. 103 (6th Cir. 2009) (ends-of-justice continuances reviewed for abuse of discretion)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (preponderance findings allowed if within statutory maximum)
United States v. Sobh, 571 F.3d 600 (6th Cir. 2009) (consent not required for continuances under End-of-Justice; ACT-specific)
United States v. White, 985 F.2d 271 (6th Cir. 1993) (consent to delay not required when defense counsel seeks continuance)
Gall v. United States, 552 U.S. 38 (2007) (procedural/substantive reasonableness standard post-Booker)
Rita v. United States, 551 U.S. 338 (2007) (sentencing factors and appellate deference to district court)
Irizarry v. United States, 553 U.S. 708 (2008) (notice for departures but not for variances)
United States v. Griffis, 282 F.3d 443 (6th Cir. 2002) (double counting with §924(c) and underlying violence guidance)
United States v. Vowell, 516 F.3d 503 (6th Cir. 2008) (upholding variance/deference in sentencing)
United States v. Presley, 547 F.3d 625 (6th Cir. 2008) (guideline calculation and 3553(a) consideration)
United States v. Simmons, 501 F.3d 620 (6th Cir. 2007) (need for consideration of §3553(a) factors)